IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090016476 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 12 November 
1970 be corrected to show award of the Army Commendation Medal and the Purple Heart.   

2.  The applicant states the Army Commendation Medal was omitted from his 
DD Form 214.  He further states “I was shot in country Vietnam on the second time, I was hospitalized for 17 days with the 95th evac.”   The applicant further states he was told he would receive the Purple Heart but he never received the award.

3.  The applicant provides his DD Form 214 and Headquarters, 1st Signal Brigade (USASTRATCOM) General Orders Number 2867, dated 27 October 1970, awarding him the Army Commendation Medal.
 
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame 


provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 30 April 1969 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 52B (Power Generator Equipment Operator Mechanic).  

3.  The applicant arrived in Vietnam and was assigned to Headquarters and Headquarters Detachment, 37th Signal Battalion on 8 November 1969.  

4.  Headquarters, 1st Signal Brigade (USASTRATCOM) General Orders Number 2867, dated 27 October 1970, shows the applicant was awarded the Army Commendation Medal for meritorious service.

5.  The applicant departed Vietnam on 8 November 1970 after participating in one campaign.  On 12 November 1970, he was honorably released from active duty in the rank of specialist four/E-4 after completing 1 year, 6 months, and 
13 days of creditable active service with no time lost.

6.  The applicant's DD Form 214 for the period ending 12 November 1970 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, one Overseas Bar, and the Marksman Marksmanship Qualification Badge (M-14 Rifle). 

7.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There also is no evidence available that shows he was wounded or treated for wounds as a result of hostile action in Vietnam.  Further, the applicant's name is not listed on the Vietnam Casualty Roster.  

8.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant was wounded, and item 41 (Awards and Decorations) does not show award of the Purple Heart. 

9.  The applicant's Army Medical Treatment Records are unavailable.



10.  There is no evidence the applicant received the first award of the Army Good Conduct Medal.  His records do not contain any adverse information and his DA Form 20 (Enlisted Qualification Record) shows his conduct and efficiency ratings as "excellent" throughout his period of service.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  

12.  Army Regulation 672-5-1 (Military Awards) in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service.

13.  Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U. S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U. S. Army Vietnam and its subordinate units during the period 20 July 1965 to 
28 March 1973.

14.  Army Regulation 600-8-22 also provides, in pertinent part, for award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal to include the Vietnam Service Medal. 

15.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) governs the requirements for the overseas service bar.  In pertinent part, it states one overseas service bar is authorized for each period of 6 months of active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973.  Both the month of arrival and the month of departure from Vietnam are counted as whole months for credit toward the overseas service bar.




DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart.  There is also no evidence available to show the applicant was injured as a result of hostile action and that he was treated for the injury.  

2.  Lacking any corroborating evidence of record showing the applicant was treated for a wound/injury that was the direct result of or caused by enemy action, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

3.  Evidence of record shows the applicant was awarded the Army Commendation Medal.  This award should be added to his DD Form 214.

4.  The applicant was separated in the rank of specialist four with 1 year, 
6 months, and 13 days of creditable active service with no time lost.  Additionally, he received conduct and efficiency ratings of "excellent" throughout his period of service.  Therefore, it appears the applicant met the eligibility criteria for award of the Army Good Conduct Medal (1st Award) for the period 30 April 1969 through 12 November 1970.

5.  Evidence of record confirms that the applicant served in Vietnam.  Therefore, he is eligible for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  His participation in one campaign makes him eligible to wear one bronze service star on his already-awarded Vietnam Service Medal.  His DD Form 214 should be amended to add these awards.

6.  The applicant served in Vietnam from 8 November 1969 through 8 November 1970.  Therefore, he is eligible to wear two overseas service bars.  His DD Form 214 should be amended to reflect these awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  awarding him the Army Good Conduct Medal (1st Award) for the period 
30 April 1969 through 12 November 1970; 

	b.  deleting the entry "1 O/S Bar," in item 24 of the applicant's D Form 214; and 

   c.  adding to his DD Form 214 the Army Commendation Medal, the Army Good Conduct Medal (1st Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, two overseas service bars, and one bronze service star to be worn on his already-awarded Vietnam Service Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090016476



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016476



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1